One year since DOMA decision re­calls other his­tor­i­cal LGBT mo­ments.

GA Voice - - Front Page - BY LISA KEEN

June 26 is the most his­toric date on the LGBT civil rights move­ment’s cal­en­dar. It is the day in 2003 when the U.S. Supreme Court ruled that states could not en­force laws pro­hibit­ing same-sex adults from hav­ing in­ti­mate re­la­tions. It is the day in 2013 when a Supreme Court pro­ce­dural rul­ing en­abled same-sex cou­ples to marry in Cal­i­for­nia. And it is the day in 2013 when the Supreme Court ruled that the fed­eral gov­ern­ment could not deny mar­ried same-sex cou­ples the same ben­e­fits it pro­vides to mar­ried male-fe­male cou­ples.

While the decision that al­lowed cou­ples in Cal­i­for­nia to marry pro­vided im­por­tant mo­men­tum to the mar­riage equal­ity move­ment, the de­ci­sions in the 2003 Lawrence v. Texas and 2013 U.S. v. Wind­sor cases are un­de­ni­ably the most im­por­tant Supreme Court de­ci­sions ever is­sued on LGBT-re­lated mat­ters.

Lawrence brought a crash­ing end to the long­stand­ing pre­sump­tion by so­ci­ety and the law that gays were “de­viant” and should be sin­gled out for dis­fa­vor.

“When ho­mo­sex­ual con­duct is made crim­i­nal by the law of the State, that dec­la­ra­tion in and of it­self is an invitation to sub­ject ho­mo­sex­ual per­sons to dis­crim­i­na­tion both in the pub­lic and in the pri­vate spheres,” wrote Jus­tice An­thony Kennedy for the 6 to 3 majority in Lawrence.

“…The State can­not de­mean their ex­is­tence or con­trol their des­tiny by mak­ing their pri­vate sex­ual con­duct a crime. Their right to lib­erty un­der the Due Process Clause gives them the full right to en­gage in their con­duct with­out in­ter­ven­tion of the gov­ern­ment.”


And it was Jus­tice Kennedy who wrote the 5 to 4 majority decision in Wind­sor last year, strik­ing the key pro­vi­sion of the fed­eral De­fense of Mar­riage Act (DOMA) that barred ev­ery fed­eral en­tity from treat­ing mar­ried same-sex cou­ples the same as mar­ried het­ero­sex­ual cou­ples for the pur­pose of any fed­eral ben­e­fit.

“The Con­sti­tu­tion’s guar­an­tee of equal­ity must at the very least mean that a bare con­gres­sional de­sire to harm a po­lit­i­cally un­pop­u­lar group can­not jus­tify dis­parate treat­ment of that group,” wrote Kennedy in Wind­sor. “…DOMA’s un­usual de­vi­a­tion from the usual tra­di­tion of rec­og­niz­ing and ac­cept­ing state def­i­ni­tions of mar­riage here op­er­ates to de­prive same-sex cou­ples of the ben­e­fits and re­spon­si­bil­i­ties that come with the fed­eral recog­ni­tion of their mar­riages. This is strong ev­i­dence of a law hav­ing the pur­pose and ef­fect of dis­ap­proval of that class. The avowed pur­pose and prac­ti­cal ef­fect of the law here in ques­tion are to im­pose a dis­ad­van­tage, a sep­a­rate sta­tus, and so a stigma upon all who en­ter into same-sex mar­riages made law­ful by the un­ques­tioned au­thor­ity of the States.”

“…DOMA un­der­mines both the pub­lic and pri­vate sig­nif­i­cance of state-sanc­tioned same-sex mar­riages; for it tells those cou­ples, and all the world, that their oth­er­wise valid mar­riages are un­wor­thy of fed­eral recog­ni­tion,” wrote Kennedy. “This places same-sex cou­ples in an un­sta­ble po­si­tion of be­ing in a sec­ond-tier mar­riage. The dif­fer­en­ti­a­tion de­means the cou­ple, whose moral and sex­ual choices the Con­sti­tu­tion pro­tects… And it hu­mil­i­ates tens of thou­sands of chil­dren now be­ing raised by same-sex cou­ples. The law in ques­tion makes it even more dif­fi­cult for the chil­dren to un­der­stand the in­tegrity and close­ness of their own fam­ily and its con­cord with other fam­i­lies in their com­mu­nity and in their daily lives.”

Kennedy’s words in both Lawrence and Wind­sor have been re­peated in nu­mer­ous court de­ci­sions since. And the pow­er­ful in­flu­ence of

“…DOMA uN­deR­miNes both the pub­liC aNd pRi­vate sig­Nif­i­CaNCe of state-sanc­tioned same-sex mar­riages; for it tells those cou­ples, and all the world, that their oth­er­wise valid mar­riages are un­wor­thy of fed­eral recog­ni­tion.”

—Jus­tice Kennedy

words and de­ci­sions has almost ob­scured the fact that they were nar­row vic­to­ries.

In Lawrence, Kennedy wrote for just five of the six jus­tices who con­sid­ered sodomy laws to be un­con­sti­tu­tional; while Jus­tice San­dra Day O’Con­nor pro­vided a sixth vote in con­cur­rence with the judg­ment, she did not join Kennedy’s opin­ion to the ex­tent that it over­ruled the 1986 decision in Bow­ers v. Hard­wick (which had up­held state sodomy laws). O’Con­nor said she would sim­ply strike Texas’ law on equal pro­tec­tion grounds. (“Moral dis­ap­proval of this group, like a bare de­sire to harm the group, is an in­ter­est that is in­suf­fi­cient to sat­isfy ra­tio­nal ba­sis re­view un­der the Equal Pro­tec­tion Clause.”)

In Wind­sor, Kennedy wrote for just five jus­tices. One of those five, Elena Ka­gan, had been on the bench for only two and a half years and ap­par­ently had to re­cuse her­self from a sim­i­lar DOMA chal­lenge that had reached the high court sooner be­cause she likely dis­cussed it while serv­ing as Solic­i­tor Gen­eral. If the court had taken that first case, Gill v. Of­fice of Per­son­nel Man­age­ment, the court likely would have ren­dered a tie vote and DOMA would still be in ef­fect in most states.


Of­ten for­got­ten, too, is the enor­mous in­flu­ence the sit­ting pres­i­dent had on the im­pact of each decision.

The ad­min­is­tra­tion of Pres­i­dent George W. Bush took no ac­tion in 2003 to see that the Lawrence decision was quickly and thor­oughly re­spected by var­i­ous fed­eral pro­grams, such as the mil­i­tary’s “Don’t Ask, Don’t Tell” law ban­ning openly gay ser­vice­mem­bers. It con­tin­ued en­forc­ing the ban that had been ap­proved by a Congress that pointed to sodomy laws to jus­tify its hos­tile treat­ment of gays. Bush said noth­ing about the Lawrence decision and the White House press sec­re­tary brushed it off as a “state mat­ter.” Then, in 2004, Bush spoke in support of a Con­gres­sional bill that sought to ban mar­riage for same-sex cou­ples.

In con­trast, Pres­i­dent Obama spoke out quickly in support of the Supreme Court’s decision in Wind­sor and or­dered his ad­min­is­tra­tion “to re­view all rel­e­vant fed­eral statutes to en­sure this decision, in­clud­ing its im­pli­ca­tions for Fed­eral ben­e­fits and obli­ga­tions, is im­ple­mented swiftly and smoothly.”

Le­gal ac­tivists re­sponded dif­fer­ently fol­low­ing both de­ci­sions, too. LGBT le­gal ac­tivists were still wary of mount­ing law­suits that would wind up in front of the Supreme Court. Even as late as 2009, they thought it was “too early” to put another is­sue to a vote at the Supreme Court.

But fol­low­ing the Wind­sor decision last year, le­gal ac­tivists filed more than 70 law­suits in short or­der, chal­leng­ing state laws in 30 states that banned mar­riage for same­sex cou­ples.


Prior to the Wind­sor decision, 12 states and the Dis­trict of Columbia al­lowed same-sex cou­ples to marry. One year later, 18 states and D.C. have mar­riage equal­ity and another 14 states have had courts de­clare their bans on same-sex cou­ples mar­ry­ing un­con­sti­tu­tional.

Prior to the Wind­sor rul­ing, 18 per­cent of the U.S. pop­u­la­tion lived in states with mar­riage equal­ity. To­day, not count­ing Wis­con­sin or Penn­syl­va­nia (whose bans are still sub­ject to ap­peal), 39 per­cent of the pop­u­la­tion lives in mar­riage equal­ity states.

U.S. Deputy As­sis­tant At­tor­ney Gen­eral Pam Karlan shared with DOJ Pride at­ten­dees ear­lier this month some of her mem­o­ries of hav­ing clerked for Supreme Court Jus­tice Harry Black­mun in 1986 when he au­thored the dis­sent to the court’s Bow­ers v. Hard­wick decision, up­hold­ing state laws pro­hibit­ing pri­vate con­sen­sual sex be­tween same-sex adults. Karlan said she sug­gested to Black­mun that the majority opin­ion was rest­ing on “an un­ex­am­ined as­sump­tion that gay peo­ple were dif­fer­ent in a way that per­mit­ted denying them” the right to in­ti­mate re­la­tions. When Black­mun wrote his dis­sent, she said, he made a sub­tle change to her sug­gested lan­guage, say­ing the majority opin­ion was based “on the as­sump­tion that ho­mo­sex­u­als are so dif­fer­ent from other cit­i­zens…”

“In mak­ing those changes, Jus­tice Black­mun was do­ing two things,” said Karlan. “First, he was em­pha­siz­ing that gay peo­ple are cit­i­zens – that is, true mem­bers of our na­tional com­mu­nity. But sec­ond, and just as im­por­tantly, he was re­ject­ing the idea that there is an ‘us’ for straight peo­ple – and that gay peo­ple are some­how a ‘them.’ And he was lay­ing the ground­work for an un­der­stand­ing that the cen­tral con­sti­tu­tional claim is not just one about lib­erty; it is about equal­ity as well.”

Edie Wind­sor, whose law­suit led to the U.S. Supreme Court strik­ing down a ma­jor por­tion of the De­fense of Mar­riage Act, has been hailed as an Amer­i­can hero and was a grand mar­shal of the 2013 New York City Pride Pa­rade. (Photo by ACLU)

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